High Court dismisses judicial review for housing but awards 50% costs to applicants due to special circumstances.

Neutral Citation Number: [2008] IEHC 434

THE HIGH COURT

2007 465 JR

BETWEEN

VERA DOOLEY, THOMAS DOOLEY, THOMAS DOOLEY JUNIOR, A MINOR SUING BY HIS MOTHER AND NEXT FRIEND, VERA

DOOLEY, PATRICK DOOLEY, A MINOR SUING BY HIS MOTHER AND NEXT FRIEND, VERA DOOLEY.

APPLICANTS

AND

KILLARNEY TOWN COUNCIL AND KERRY COUNTY COUNCIL

RESPONDENTS

Judgment of Mr. Justice Michael Peart delivered on the 18th day of December 2008

1. In these proceedings the applicants sought a great many reliefs by way of judicial review, all directed in one way or another to

force, or at least put pressure upon the respondent councils to provide them with permanent housing, in circumstances where they

have been living for some years in a one-bed-roomed chalet in a halting site with their small children. The applicants regarded and still

regard that accommodation to be not suitable for them and their children, and to be overcrowded, even if, as I concluded, these

conditions do not meet the statutory definition of “overcrowded”. They were assessed along time ago as being qualified for housing,

but have not yet been allocated a house.

2. The applicants’ application for reliefs by way of judicial review has failed for the reasons which appear in my judgment. While I

reached certain conclusions of fact which are in favour of the applicants, and while I was also critical of the respondents in relation

to certain failures to reply to correspondence from the applicants’ solicitors, and also to keep the applicants, or even their solicitors,

appropriately informed of progress, or perhaps the lack of it, in relation to a certain offer of a replacement chalet in October 2007

which, though accepted at that time by the applicants, never materialised, I reached the conclusion that nothing which had been

either done or not done by the respondents was sufficient for this Court to exercise its discretion to grant the orders sought.

3. On the present application for costs, the successful respondents seek their costs against the applicants. I do not suppose for one

moment that were this Court to grant that application there is any reasonable prospect of recovery. The applicants are young

members of the traveller community, and while that status is not of itself to be presumed to indicate a lack of financial resources,

nevertheless I am satisfied from what I have heard during this case that these particular applicants are persons who could not

possibly discharge any order for costs which might be made. That of course is not determinative of the issue as to whether or not a

costs order should be granted.

4. Mr. Keane has rightly pointed out that the normal rule is that costs must follow the event, and he urges therefore that in this case

the applicants, having failed in their proceedings, should be made to bear the costs of the successful respondents. He has accepted

that certain criticisms have been made against his clients in respect of a failure to a degree to reply in a meaningful way to some

letters from the applicants’ solicitor, but points out also that many other such letters did receive a response, and that these criticisms

ought not to be decisive in the exercise of the Court’s undoubted discretion in the question of costs. Mr. Keane has also pointed to

the fact that an offer made by the respondents to the applicants as the case was about to commence before me was rejected by

them. He submitted at hearing that this refusal had been so as to maintain as much pressure as possible on the respondents allocate

a house to them ahead of others on the housing list, and that this was an impermissible collateral purpose and an abuse of the

process of the court.

5. Mel Cristle SC for the applicants has not only sought to resist the respondents’ application for costs against the applicants, but

seeks an order for the costs of the proceedings against the respondents, even though his clients were unsuccessful. He submits that

there are special features identifiable in this case which would justify this Court from departing from the ‘normal rule’ that costs should

follow the event.

6. Those circumstances have been outlined by him as the following:

1. On the Friday before this case came on for hearing, the respondents made an offer to the applicants of a two bed-

roomed chalet to the applicants, in addition to their existing one bed-roomed unit.

2. This Court has held that on the balance of probabilities, no offer of a two bed-roomed chalet was made by the

respondents in 2005 as had been alleged.

3. That according to the respondents’ Director of Housing the existing accommodation is unacceptable.

4. The fact that the respondents never informed the applicant that they were unable to fulfil the agreement of October

2007 already referred to above, and in that regard Mr. Cristle has referred to the Court’s judgment at pages 48-49

thereof.

5. That the issues referred to in the respondents’ evidence as to the existence of tar barrels and plant being on the

premises had not been notified to the applicants as being relevant to the question of allocating a house to them.

7. Mr. Cristle submits that the failure of the respondents to respond to certain correspondence from the applicants’ solicitor had made

it necessary for the applicants to commence the present application, and that in fact the applicants have succeeded in achieving

certain findings which are favourable to them. In all these circumstances it is submitted that not only should no order for costs be

awarded against the applicants, but they ought to be entitled to an order for their costs.

8. Mr. Cristle has referred to the judgment of the Chief Justice in Dunne v. Minister for the Environment, Unreported, Supreme Court,

6th December 2007, which explained the discretion of the Court to depart from the ‘normal rule’ that costs should follow the event

may be departed from. He stated:

" The rule of law that costs normally followed the event, that the successful party to proceedings should not have to

pay the costs of those proceedings which should be borne by the unsuccessful party, has an obvious equitable basis. As

a counterpoint to that general rule of law the Court has a discretionary jurisdiction to vary or depart from that rule of

law if, in the special circumstances of the case, the interests of justice require that it should do so. There is no

predetermined category of cases which fall outside the full ambit of that jurisdiction. If there were to be a specific

category of cases to which the general rule of law on costs did not apply that would be a matter for legislation since it is

not for the courts to establish a cohesive code according to which costs would always be imposed on certain successful

defendants for the benefit of certain unsuccessful plaintiffs.

Where a court considers that it should exercise a discretion to depart from the normal rule as to costs it is not

completely at large but must do so on a reasoned basis indicating the factors which in the circumstances of the case

warranted such a departure. It would neither be possible or desirable to an attempt to list or define what all those

factors are. It is invariably a combination of factors which is involved. An issue such as this is decided on a case by case

basis and decided cases indicate the nature of the factors which may be relevant but it is the factors or combination of

factors in the context of the individual case which determine the issue.

Accordingly, any departure from the general rule is one which must be decided by a court in the circumstances of each

case. In Curtin v. Clerk of Dáil Éireann and Others, Supreme Court, unreported 6th April 2006, this Court stated:

‘The general rule is that costs follow the event subject to the court having a discretion, for a special reason, to

make a different order. It is a discretion to be exercised in the circumstances and context of each case and is one

which is so exercised from time to time. Counsel for all parties referred to previous decisions of this court and the

High Court, in which a discretion was exercised to make an order concerning costs which did not follow the general

rule. It would neither be possible in order desirable to lay down one definitive rules according to which exceptions

are to be made to the general rule. The discretionary function of the court to be exercised in the context of each

case militates against such a definitive rule of exception and it is also the reason why previous decisions of such a

question are always of limited value.’ "

9. In my view there are special circumstances which warrant a variation of the normal rule. In my view it was reasonable for the

applicants to commence these proceedings in the face of the failure by the respondents to meaningfully address the correspondence

to which I have referred from the applicants’ solicitor. This is a case where the living conditions in which the applicants were living

were known to the respondents, as were the concerns being expressed on their behalf by their solicitors. There was urgency in at

least receiving a response to that correspondence given particularly the fact that there were very young children involved. It is a

fact also, which I have regard to, that very late in the day an offer was made in October 2007 to which I have referred. The fact

that this offer was not taken up at that time by the applicants, for reasons appearing in my earlier judgment is a relevant

consideration also. I do not regard the issue of the tar barrels and plant as particularly relevant to this particular issue of costs.

10. I must not overlook completely the fact that the application failed, and must balance that fact against the features of the case

to which I have referred. The Court has a wide discretion as to the costs order which it may consider appropriate in order to do

justice between the parties.

11. In all the circumstances, it is appropriate therefore not to make an award of costs against these applicants, and it is appropriate

in my view, given the need to bring the proceedings in order to bring minds to bear meaningfully on their predicament that the

applicants be awarded 50% of their costs of these proceedings to be taxed in default of agreement.

12. I will so order.